By: Michael Peretz<\/p>\n\n\n\n
Several\nhigh profile First Amendment cases came before the Court in its most recent\nsession. While Masterpiece Cakeshop v.\nColorado Civil Rights Commission<\/em> was\nthe most publicized case on the docket, the Court\u2019s decision in Janus v.\nAFSCME <\/a><\/em> was arguably\na more contentious case, as signified by the Court\u2019s narrow 5-4 ruling, its\nimpact<\/a> on millions of employees, and the strongly\nworded dissent by Justice Elena Kagan against the conservative majority. In her\ndissent<\/a>, Justice Kagan accused the conservative\nmajority of using its interpretation of the First Amendment as justification to\nweigh into an important policy decision that should be made by the \u201cpeople,\nacting through [their] state and local officials.\u201d In fact, she went so far as\nto accuse the conservative majority of \u201cweaponizing the First Amendment.\u201d <\/p>\n\n\n\n This blog post briefly discusses the facts of Janus<\/em>, presents the rationales behind\nboth the conservative majority\u2019s decision to overturn the court\u2019s longstanding\nprecedent in Abood v.\nDetroit Board of Education<\/a><\/em> and\nJustice Kagan\u2019s subsequent dissent, and then concludes by making a preliminary judgment\non Kagan\u2019s provocative stance. <\/p>\n\n\n\n The petitioner in Janus <\/em>was an Illinois state employee whose work group was\nrepresented by a public-sector union. Mr. Janus refused to join the union as a\nfull member and was considered a nonmember employee. Unlike other nonmembers, Mr.\nJanus refused to pay<\/a> the mandatory \u201cagency fee\u201d charged to\nnonmembers (a percentage of the full-union dues) because he did not agree with\nmany of his union\u2019s positions, including those taken in collective bargaining. Accordingly,\nMr. Janus was in violation of Illinois policy, originally upheld in Abood<\/em>, which permitted public-sector\nunions to charge mandatory fees to nonmembers to cover activities \u201cgermane\u201d to\nthe union\u2019s collective bargaining activities. The Court\u2019s main holding in Abood<\/a><\/em> <\/em>was that the policy of requiring nonmembers to\npay union dues did not violate the First Amendment, simply because nonmembers\nreceived a tangible benefit from the union\u2019s representation of their interests\nduring collective bargaining. Abood <\/em>remained\ngood law for forty-one years, until the conservative majority overturned it in Janus<\/em>. <\/p>\n\n\n\n The conservative majority, consisting of Roberts,\nKennedy, Thomas, Alito, and Gorsuch, found that Illinois\u2019 \u201cextraction of agency\nfees from nonconsenting public-sector employees violated the First Amendment.\u201d\nWhen explaining its determination that Abood\n<\/em>was inconsistent with standard First Amendment principles, the majority\u2019s opinion,\nwritten by Justice Samuel Alito, held that the First Amendment protects \u201cthe right to\neschew association for expressive purposes<\/a>,\u201d\nand that \u201cforced\nassociations that burden protected speech are impermissible<\/a>.\u201d Therefore, the majority explained, if a state decides\nto compel \u201cindividuals to mouth support for views they find objectionable,\u201d like\nthe State of Illinois did here by means of mandating fees to nonmembers, it\nwould be in violation of the First Amendment, unless the State could prove it\nwas \u201cserving a compelling state interest that [could not] be achieved through\nmeans significantly less restrictive [than the means employed].\u201d <\/p>\n\n\n\n When applying this \u201cexacting scrutiny\u201d standard\nto the facts of Abood<\/em> and those\npresent in Janus<\/em>, the majority\ndetermined the State, in both instances, did not have a compelling enough interest\nto justify the policy of compulsory subsidization of commercial speech. In\nfact, the majority explained its rationale in \u201csimple\nterms\u201d<\/a> when\nit proclaimed that \u201cthe First Amendment does not permit the government to\ncompel a person to pay for another party\u2019s speech just because the government\nthinks that the speech furthers the interests of the person who does not want\nto pay.\u201d If one accepts the majority\u2019s rule of general applicability above as\nreasonable, then, determining the constitutionality of Illinois\u2019 policy in Janus <\/em>is relatively easy: Even though\nthe State believed that its statute requiring nonmembers to pay dues furthered\nthe interests of those nonmembers, it nonetheless violated the Constitution\nbecause \u201cthe First Amendment was [never] originally understood to allow States\nto force public employees to subsidize a third party.\u201d <\/p>\n\n\n\n Justice Kagan directly\nrebuked<\/a> the\nconservative majority\u2019s interpretation of previous First Amendment\njurisprudence and appeared to take issue with the \u201cexacting scrutiny\u201d test it\napplied. In her view, the conservative majority should have used a standard\nresembling rational basis review, determining whether \u201c[a] government entity\ncould reasonably conclude<\/em> that such a\nclause was needed\u201d (emphasis added) before making a determination as to the\nconstitutionality of the policy at issue. If the majority had applied the rational\nbasis standard Justice Kagan advocated for rather than the \u201cexacting scrutiny\u201d\nstandard, then, it would have likely upheld Abood\n<\/em>and the Illinois policy at issue in Janus<\/em>.\n<\/p>\n\n\n\n The majority\u2019s decision to analyze Illinois\u2019\npolicy with \u201cexacting scrutiny\u201d is at the core of what this blog post tries to\naddress: whether it weaponized the First Amendment in order to get a desired\npolicy result. Justice Kagan, joined by Ginsburg, Breyer, and Sotomayor, went\nso far as to accuse the majority of having \u201cso little regard for the usual\nprinciples of stare decisis\u201d when it decided to overturn longstanding precedentwithout having any \u201cspecial justifications\u201d\nto do so. It was dissent\u2019s view that Abood\n<\/em>was \u201cdeeply entrenched,\u201d and thus the majority\u2019s decision to overturn a\ndecision that \u201cstruck a balance between public employers\u2019 interests and public\nemployees\u2019 expression\u201d was irresponsible. <\/p>\n\n\n\n Although one could understand and respect the\ndissent\u2019s position, it seems the majority did not use an improper\ninterpretation of the First Amendment as a means to get specific policy\nresults. The majority cited to other longstanding precedent to demonstrate that\nAbood <\/em>was in fact an outlier and not\n\u201cat home in First Amendment doctrine,\u201d as the dissent proclaimed. Furthermore,\nthe majority\u2019s decision to apply \u201cexacting scrutiny\u201d to the Illinois\u2019 policy\nwas also supported by previous First Amendment cases involving compelled\ncommercial speech and was not suddenly sprung onto the Court in order to get a\ndesired result. Although the decision to overturn Abood <\/em>was understandably controversial because it overturned the\nlongstanding policy of over twenty states, it appears the majority was on solid\nground to do so and did not improperly wield the First Amendment as a sword. <\/p>\n","protected":false},"excerpt":{"rendered":" By: Michael Peretz Several high profile First Amendment cases came before the Court in its most recent session. While Masterpiece Cakeshop v. Colorado Civil Rights Commission was the most publicized case on the docket, the Court\u2019s decision in Janus v. AFSCME was arguably a more contentious case, as signified by the Court\u2019s narrow 5-4 ruling, …<\/a><\/p>\n","protected":false},"author":10,"featured_media":2386,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[5],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2385"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/comments?post=2385"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2385\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media\/2386"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=2385"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=2385"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=2385"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}